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1897, p. 743, c. 612) $ 200, providing that a negotiable instrument is discharged when the principal debtor becomes the holder at or after maturity in his own right, and was liable thereon.

[Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 437.*] Appeal from Appellate Term.

Action by Richard Korkemas against Elias Macksoud. From a determination of the Appellate Term, affirming a judgment of the City Court dismissing the complaint at the close of the case, plaintiff appeals by permission. Reversed, and new trial ordered.

Argued before PATTERSON, P. J., and LAUGHLIN, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

E. W. Tyler, for appellant.
Maurice M. Greenstein, for respondent.

MCLAUGHLIN, J. This action was brought in the City Court of the city of New York to recover the amount of a promissory note made by the defendant and payable to the order of N. H. Maloof & Co. At the close of the case, upon motion of the defendant, the complaint was dismissed, and from the judgment entered the plaintiff appealed to the Appellate Term, which affirmed the judgment, and by permission plaintiff has appealed to this court.

The material facts are not disputed. The note was dated on the 24th of July, 1907. It was indorsed by N. H. Maloof & Co. and discounted by the plaintiff prior to maturity; Maloof & Co. receiving a check from him for the face of the note, which was paid. Defendant did not pay the note at maturity, but telephoned one Gamen, who was the manager of the plaintiff, the day the note fell due, and called his attention to that fact, and at the same time said he did not want the note protested, and asked the plaintiff to take it up and he would pay him. The plaintiff did as requested by giving to the bank which had discounted it for him a check for the face of it. In some way, just how does not appear, whether by accident or design, the note got into the possession of the defendant, and from that fact alone it was claimed that the note was paid.

There is no pretense that the defendant actually paid the note, or that it was delivered to him by the plaintiff in pursuance of any agreement or understanding of any kind. All that the defendant claims is that Maloof & Co., on the day the note was given, sent him two notes, one signed by Maloof & Co., payable to his order, which he kept, and the other, the note in suit, payable to Maloof & Co.'s order, which he signed and returned to them; that this note was subsequently returned to him, whether by messenger or mail he could not say; that he was not present when the same was received, but he found it on his desk some time subsequent to the day it fell due; that the only way he paid it was by returning to Maloof & Co. their note. It also appeared that the check which the plaintiff gave to Maloof & Co. when he discounted the note was delivered by Maloof & Co. to the defendant, who had the same cashed. The defendant did not deny that he had requested the plaintiff, through his manager, on the day the note fell due, not to have

it protested, but to take it up and he would pay it. Nor did he deny that two or three days thereafter the plaintiff's manager called upon him and asked him to pay the note, and that he then said he would look after it in a few days.

Just how it could be supposed that the defendant, upon the facts stated, was not liable, it is difficult to imagine. The defendant was the maker of the note. It was his obligation, and he was primarily liable; and the fact that the plaintiff, the second indorser, saw fit, in order to prevent its being protested, to pay it on the day it fell due, did not discharge the defendant's liability. Section 200 of the negotiable instruments law (Laws 1897, p. 713, c. 612), which provides that a negotiable instrument is discharged when the principal debtor becomes the holder at or after maturity in his own right, has nothing to do with the question. The defendant never became the holder "in his own right.” He was no more entitled to the possession of the note than if he had forcibly taken it from the plaintiff without payment. Plaintiff never intended to part with it without payment, and it requires something more than the possession of a promissory note, obtained either by accident or design, to extinguish the liability of the maker. Instead of dismissing the complaint, the court, at the conclusion of the trial, should have directed a verdict for the plaintiff.

It follows that the determination and judgment appealed from must be reversed, and a new trial ordered, with costs in this court and in the court below to appellant to abide the event. All concur.

ELLIS et al. v. TOWN OF PELHAM. (Supreme Court, Special Term, Westchester County. October, 1908.) EASEMENTS (8 34*)-GRANT-FORFEITURE-REVIVAL.

A right of way for access to a dock, claimed by a town under a grant, which has been forfeited for abandonment of the dock, followed by reentry by the grantor, is not revived by the subsequent use of the dock by a contractor with a village in the town, consisting of unloading barges of stone at the dock and wheeling the same over it, after repairing the floor of the dock, though such use is under the express authority of the town.

[Ed. Note.—For other cases, see Easements, Dec. Dig. $ 34.*]

Action by Augustus V. H. Ellis and another against the Town of Pelham. Judgment for plaintiffs.

See 106 App. Div. 145, 94 N. Y. Supp. 103; 106 App. Div. 613, 94 N. Y. Supp. 1145.

Philip S. Dean, for plaintiffs.
Henry G. K. Heath, for defendant.

MILLS, J. This is an action brought to bar the defendant from all claim to an estate, or easement, or interest in the nature of an easement, in certain described premises. The defendant town has, on the shore of Long Island Sound, in front of said premises, a dock,

•For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

originally constructed about 1871, and it claims a right of way over said premises from the adjacent highway to said dock. The action is brought to bar such claim. This is the second trial of the case. The previous trial resulted in a decision in favor of the defendant; holding that the defendant has and is entitled to have such right of way. From the judgment entered upon such decision an appeal was taken by the plaintiffs to the Appellate Division in this (the Second) department, which, after argument and submission, reversed the judgment appealed from; the decision being reported in 106 App. Div. 145, 94 N. Y. Supp. 103.

The facts of the case are very clearly stated in the opinion of the Appellate Division, written by Mr. Justice Miller, and need not here be repeated. The gist of the opinion as to the material matters of fact involved is that the evidence in the record before that court"abundantly established that for many years prior to May, 1902, the defendant had failed to maintain the said dock for the use of the town, and had abandoned the same within the meaning of the grant.” 106 App. Div. 147, 94 N. Y. Supp. 103.

And again: "In May, 1902, before the conveyance to the plaintiffs, the defendant re built the dock in a substantial manner; but this was long after the plaintiffs' grantor had signified in the clearest manner possible his election to re-enter, close the right of way, and exclude all persons therefrom." 106 App. Div. 148, 94 N. Y. Supp. 103.

In other words, the Appellate Division held that the evidence abundantly established that many years prior to May, 1902, the town had abandoned the dock, and the plaintiffs' grantors, by constructing and maintaining a fence across the strip and posting a notice forbidding trespassing thereon, had re-entered and closed the right of way, and signified in the clearest manner their election to do so.

The evidence upon this trial seems to me to be substantially the same as it was upon the prior trial, except for the testimony of the contractor, Carpenter, and his foreman, Silimoni, to the effect that in June, 1895, Carpenter, who then had a contract with the village of Pelham Manor (which is within the defendant town) to construct a road, unloaded upon the dock two barges of stone. Such testimony shows that they unloaded such stone by repairing the floor of the dock and wheeling the stone in over the dock and the planks they laid which led to the wagons, which they backed up to the dock. It does not seem to me that the fact of such use of the dock upon that single occasion, in the summer of 1895, has materially altered the situation of the case from that which it had at the prior trial.

As above indicated, the opinion of that court declared that the condition of abandonment and of consequent re-entry had existed “for many years prior to May, 1902"; and, in view of the facts contained in the former record, I think that the court in such statement must have referred to a period even prior to 1895. If so, the use of the dock in that year by the contractor, even if made by express authority of the town officials, which is not proven, could have been no more

the repairs actually made by the town in 1898, and much more largely in 1902. Such repairs were proven at the former trial, and were not regarded by the Appellate Division as of material force.

Therefore I feel constrained by the decision of that court upon the former appeal to decide that the case of the plaintiffs is proven, and that they are entitled to judgment substantially as demanded.

ORTIZ V. CORNELL (Supreme Court, Special Term, Westchester County. September, 1908.) PLEADING ($ 167*)—DEFENSE OR COUNTERCLAIM.

Where matters alleged in an answer may constitute both a defense and a counterclaim, but are by express nomination pleaded as a defense only, they must be treated as such, and not as a counterclaim, at least as far as the question turns on the want of a reply, though the prayer is for an afirmative judgment, as well as for judgment appropriate to a defense.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. $ 329; Dec. Dig. $167.*] Action by Lester E. Ortiz against Edwin T. Cornell, as committee of the person and property of Frank S. Cornell, an incompetent person. Defendant's motion for judgment denied.

Burton C. Meighan, for the motion.
Chester M. Elliott, opposed.

MILLS, J. This is a motion made by the defendant for judgment for the sum of $100 and interest upon a counterclaim for that amount claimed to be alleged in the answer, upon the ground that the plaintiff has failed to serve a reply to such counterclaim and that his time so to do has expired. The facts that no reply has been served and that such time has expired are admitted.

In the answer the allegations now claimed by the defendant to constitute such counterclaim are by express nomination therein pleaded "for a second and separate defense.” It seems to be well established that, where such allegations may constitute both a defense and a counterclaim, and they are in the answer by express nomination pleaded as a defense only, they must be treated as such, and not as a counterclaim, at least where the question turns upon the want of a reply, although, in the prayer for relief, affirmative judgment is demanded, as well as judgment appropriate to' the maintenance of a defense, namely, the dismissal of the complaint. Acer v. Hotchkiss, 97 N. Y. 395, 408; Equitable Life Insurance Co. v. Cuyler, 75 N. Y. 511, 514; Gilsey v. Keen (No. 1, First Dept.) 104 App. Div. 427, 431, 93 N. Y. Supp. 783, 785.

Of the several cases cited by the defendant's counsel in his brief, those of Metropolitan Trust Co. v. Tonawanda, etc., R. R. Co., 43 Hun, 521, and McCrea v. Hopper, 35 App. Div. 572, 55 N. Y. Supp. 136, seem to more nearly sustain the defendant's contention here; but in each case it appears that the allegations in the answer claimed to *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep's Indexes

constitute a counterclaim did not in their nature as well constitute a defense, They amounted to an attempt by the answer to foreclose a senior mortgage held by the answering defendants, and such an effort in its very nature constituted an attempt to make a counterclaim, and not a defense.

The motion for judgment upon the alleged counterclaim is therefore denied, with $10 costs.

FRAHM V. SIEGEL-COOPER CO. (two cases). (Supreme Court, Appellate Division, First Department. April 8, 1909.) 1. TRIAL (8 127*)—ARGUMENTS AND CONDUCT OF COUNSEL-REFERENCE TO PRO

TECTION OF DEFENDANT BY INSURANCE OR OTHER INDEMNITY.

Where, in an action for injuries while riding in defendant's passenger elevator, there was no evidence connecting a casualty company with the action in any way whatever, it was error requiring a reversal for plaintiff's counsel to ask defendant's superintendent how soon he communicated with the company regarding the accident, and, after an objection to the question was sustained, to ask an elevator expert testifying for de fendant, and who stated that he had been retained by the latter, whether the casualty company had already employed him.

[Ed. Note.—For other cases, see Trial, Cent. Dig. $ 275; Dec. Dig. $

127.*] 2. CARRIERS ($ 280*)—PASSENGER ELEVATORS-OPERATION-CARE REQUIRED.

It is the duty of the owner and operator of a passenger elevator to exercise the ordinary care that a reasonable person would exercise for the protection of passengers.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1092; Dec. Dig.

§ 280.*] 3. CARRIERS (8 321*)—PERSONAL INJURIES-ACTIONS-INSTRUCTIONS_RES IP

SA LOQUITUR.

Where, in an action for injuries to plaintiff through being struck on the head while riding in defendant's passenger elevator by a piece of mortar which fell down the shaft, there was evidence that mortar had been allowed to protrude into the shaft, so as to be liable to be broken off by constant vibration, and defendant undertook to show that the condition of the mortar was not necessarily dangerous, and that it had exercised all reasonable care to inspect and guard against such accidents, the court should have instructed that the verdict must be for defendant, in the absence of evidence that it knew, or in the exercise of reasonable care should have knowu, that the mortar was in such condition that a reasonably prudent person would believe that it might fall; and an instruction which, after giving in general terms the rule of “res ipsa loquitur," stated negligence might be found from the mere happening of the accident, unexplained, stated the case too broadly.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. 8 1334; Dec. Dig. 8 321.*) Appeal from Trial Term, New York County.

Actions by Ethel Frahm and by Stephen Frahm against the SiegelCooper Company. From judgments for plaintiffs, and from orders denying defendant's motions for new trial, it appeals. Reversed.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

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